Principle versus pragmatism
Is it lawful for an HMO (Houses in Multiple Occupation) licence to restrict the use of a bedroom to a particular occupier, such as students? Alexander Campbell analyses a recent Upper Tribunal ruling.
The law on houses in multiple occupation (‘HMOs’) exists to protect occupiers. It does this by requiring landlords to adhere to certain standards regarding the condition of the property. But should certain types of people have to be prepared to live in poorer conditions than others? According to a recent decision from the Upper Tribunal, the answer appears to be yes.
HMOs
Under the Housing Act 2004, every HMO to which the Act applies is required to have a licence. When the local housing authority grants an HMO licence, it is entitled to impose conditions, for example conditions as to which parts of the property may be occupied, conditions as to facilities and equipment which must be made available to the occupiers and conditions requiring facilities in the property to be kept in proper working order (see section 67 of the Act). By requiring HMOs to be licensed in this way, the licensing scheme is designed to raise the standard of accommodation and living conditions for occupiers.
The licences in Nottingham CC v Parr
The respondents are both in the business of letting out accommodation to students. The appeal concerned two properties. For one property, the local authority imposed a condition prohibiting the use of one bedroom as a room for sleeping unless works were carried out to enlarge it. For the other property, the authority imposed a condition prohibiting the use of one bedroom as a sleeping room because of its size unless the occupant were also given the exclusive use of another room to use in conjunction with it.
Decision of First Tier Tribunal
The respondents appealed to the First Tier Tribunal (Property Chamber). After inspecting the two properties, the FTT allowed the appeals and deleted the conditions being challenged. For one property, the FTT substituted a new condition which stated that the small bedroom could be used as a bedroom but only by a full-time student who would only be in the property for a maximum of 10 months per year. For the other property, the FTT did not introduce any replacement condition, holding instead that there were already sufficient compensating features in the property to make it suitable for students or other people living in a similarly cohesive fashion.
Appeal to the Upper Tribunal
The local authority appealed to the Upper Tribunal on two grounds: firstly arguing that a HMO licence cannot distinguish between different types of occupier by saying that a bedroom is suitable for a student but not for somebody else; and secondly arguing that the condition imposed by the FTT was unenforceable since a local authority would not be able to police whether a particular bedroom was occupied only by a full-time student who was only residing in the property for 10 months in the year.
The local authority argued that HMO licence conditions are designed to protect all occupiers by imposing objective standards to which a landlord must adhere. The authority argued that the FTT was taking a dangerous step by holding that the subjective willingness of some occupiers to live in poorer conditions could be incorporated into a licence.
Upper Tribunal’s decision
In Nottingham City Council v Dominic Parr and Trevor Parr Associates Limited [2016] UKUT 71 (LC) the Upper Tribunal dismissed the appeal and upheld the conditions which the FTT had imposed. The Upper Tribunal recognised the danger of introducing the subjective views of occupiers into licence conditions: in areas where housing is in short supply, occupiers might be willing to accept poorer housing conditions because of the difficulty in finding somewhere else to live. The Upper Tribunal recognised that this would deprive those occupiers of the very protection which the HMO licensing scheme is designed to provide.
However the Upper Tribunal held that there is a big difference between, on the one hand, an HMO licence taking into account the subjective views of particular individuals (which would not be permissible) and, on the other hand, an HMO licence recognising that particular categories of occupier could reasonably be expected to live in conditions which might not be as acceptable to the world at large (which, the Upper Tribunal held, should be permissible).
The Upper Tribunal thus specifically rejected the local authority’s argument that the Housing Act 2004 requires that an HMO be capable of occupation by all potential occupiers.
In response to the local authority’s argument that a condition which states that a bedroom may only be occupied by a student and for a maximum period of ten months per year is unenforceable, the Upper Tribunal held that whilst such a condition may be difficult to police, it is not impossible to do so, particularly because the contracts under which a HMO is occupied have to be made available to the local authority for inspection in any event.
The consequences of the decision
The rationale behind the decision is that certain types of occupier, such as students, have a more cohesive living style than others, meaning that they are spending so much time in the communal areas of the property that the size and condition of their own bedroom is of less importance than it might otherwise be. Defenders of the decision might argue that it is an example of the Upper Tribunal taking a pragmatic approach to the reality of some people’s way of occupying their home.
However the decision poses real dangers. The principle that different classes of occupier are entitled to expect different standards of living accommodation is one which risks watering down the protection which HMO licensing is supposed to provide. Although it was the cohesive living pattern which justified the smaller bedrooms in this appeal, the conditions in the HMO licences do not refer to cohesive living; in the case of one property, the condition simply refers to students who can only be present for 10 months of the year, and in the case of the other property, there was no such condition at all. As a consequence, the Upper Tribunal’s decision risks setting an unfortunate precedent that a particular class of occupier are obliged to tolerate poorer accommodation.
The Upper Tribunal’s decision also poses very real practical difficulties. Where an HMO licence provides that a room can only be occupied by somebody who is occupying for a certain number of months per year, that provision may well conflict with the terms of that person’s tenancy agreement which gives them exclusive possession of their bedroom for, say, a full 12 months. Section 67 of the Housing Act 2004 states that an HMO licence cannot impose a condition which requires any alteration to the terms of a tenancy or licence under which a person occupies the property. Arguably a condition limiting the time that a person can live in the property does just that.
A landlord commits a criminal offence if he fails to comply with a condition of an HMO licence (section 72(3) of the Act). Where it is a condition that a particular occupant will only occupy their bedroom for a certain number of months a year, the landlord will have to take steps to ensure that that condition is being complied with. This may give rise to difficult legal disputes about whether a landlord has a reasonable excuse (and therefore a defence) for not ensuring that that condition is being complied with.
Time will tell whether the Upper Tribunal’s decision will pave the way for local authorities and the FTT to start imposing more licence conditions which differentiate between the standards of accommodation which different groups of people are entitled to expect. If the principle from the case is limited to a narrow range of cases where occupants are living in a communal and cohesive way, it may prove to be a pragmatic reflection of the real living conditions of certain occupants. However the potential for the principle to lay an uncomfortable precedent and to begin to water down the protection of objective standards which the HMO licensing regime was designed to produce is a very real one.
Alex Campbell is a barrister at Arden Chambers. He can be contacted on 020 7242 4244 or This email address is being protected from spambots. You need JavaScript enabled to view it..
